HomeMy WebLinkAbout- Denial - 158 FOREST STREET 6/15/2021 4
Massachusetts Department of Environmental Protection Provided by MassDFP:
Bureau of Resource Protection - Wetlands 242-1800
WPA Form 5 -- Order of Conditions MassDEP File#
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction#
North Andover
Cityfrown �
A. General Information
Please note: North Andover
this form has q. From:been modified Conservation Commission
with added 2. This issuance is for
spaceto a. ® Order of Conditions b. Amended Order of Conditions
accommodate (check one):
the Registry
of Deeds 3. To: Applicant:
Requirements
Nicholas Triano
Important: a. First Name b.Last Name
When filling
out forms on c.Organization
the 158 Forest Street
computer, d.Mailing Address --
use only the
tab key to North Andover MA 01845
move your e.City/Town f.State g.Zip Code
cursor-do
not use the 4. Property Owner(if different from applicant):
return key.
r a. First Name b. Last Name
c.Organization
d.Mailing Address
e.City/Town f.State g.Zip Code
5. Project Location:
158 Forest Street North Andover
a.Street Address b.CitylTown
Map 106A Lot 0190
c.Assessors Map/Plat Number d_Parcel/Lot Number
Latitude and Longitude, if known: 42d66mO960s -7106m4680s
d. Latitude e. Longitude
wpaform5.doc rev511812020 Page 1 of 13
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands 242-1800
MassDEP File#
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction#
ILI North Andover
City/Town
A. General Information (cunt.)
6. Property recorded at the Registry of Deeds for(attach additional information if more than
one parcel):
Northern Essex (N.E.R.D.)
a.County b.Certificate Number(if registered land)
04762 230
c. Book d.Page
November 23, 2020 May 26, 2021 June 15, 2021
7. Dates: __..____........
a. Date Notice of Intent Filed b. Date Public Hearing Closed c.Date of Issuance
a. Final Approved Plans and Other Documents (attach additional plan or document references
as needed):
No Plans Approved, Project Denied
a.Plan Title
b.Prepared By c.Signed and Stamped by _
d.Final Revision Date e.Scale
f.Additional Plan or Document Title g.Date
B. Findings
1. Findings pursuant to the Massachusetts Wetlands Protection Act:
Following the review of the above-referenced Notice of Intent and based on the information
provided in this application and presented at the public hearing, this Commission finds that
the areas in which work is proposed is significant to the following interests of the Wetlands
Protection Act(the Act). Check all that apply:
a. ® Public Water Supply b, ❑ Land Containing Shellfish c. ® Prevention of
Pollution
d. ® Private Water Supply e. ® Fisheries f. ® Protection of
Wildlife Habitat
g. ® Groundwater Supply h. ® Storm Damage Prevention i. ® Flood Control
Z This Commission hereby finds the project, as proposed, is: (check one of the following boxes)
Approved subject to:
a. ❑ the following conditions which are necessary in accordance with the performance
standards set forth in the wetlands regulations. This Commission orders that all work shall
be performed in accordance with the Notice of Intent referenced above, the following
General Conditions, and any other special conditions attached to this Order. To the extent
that the following conditions modify or differ from the plans, specifications, or other
proposals submitted with the Notice of Intent, these conditions shall control.
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands 242-1800 -
MassDEP File#
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 et7El'Transaction#
ILI North Andover
CitylTown
B. Findings (cant.)
Denied because:
b. ❑ the proposed work cannot be conditioned to meet the performance standards set forth
in the wetland regulations. Therefore, work on this project may not go forward unless and
until a new Notice of Intent is submitted which provides measures which are adequate to
protect the interests of the Act, and a final Order of Conditions is issued. A description of
the performance standards which the proposed work cannot meet is attached to this
Order.
c. ® the information submitted by the applicant is not sufficient to describe the site, the work,
or the effect of the work on the interests identified in the Wetlands Protection Act.
Therefore, work on this project may not go forward unless and until a revised Notice of
Intent is submitted which provides sufficient information and includes measures which are
adequate to protect the Act's interests, and a final Order of Conditions is issued. A
description of the specific information which is lacking and why it is necessary is
attached to this Order as per 310 CMR 10.05(6)(c).
3. ❑ Buffer Zone Impacts: Shortest distance between limit of project
disturbance and the wetland resource area specified in 310 CMR 10.02(1)(a) a. linear feet
Inland Resource Area Impacts: Check all that apply below. (For Approvals Only)
Resource Area Proposed Permitted Proposed Permitted
Alteration Alteration Replacement Replacement
4. ❑ Bank a. linear feet b.linear feet c.linear feet d.linear feet
5. ❑ Bordering
Vegetated Wetland a.square feet b.square feet c.square feet d.square feet
6. ❑ Land Under _
Waterbodles and a.square feet b.square feet c.square feet d.square feet
Waterways
e.cly dredged f.cly dredged
7. ❑ Bordering Land
Subject to Flooding a.square feet b,square feet c.square feet d.square feet
Cubic Feet Flood Storage e.cubic feet f.cubic feet g.cubic feet h.cubic feet
a. ❑ Isolated Land
Subject to Flooding a.square feet b.square feet
Cubic Feet Flood Storage c.cubic feet d.cubic feet e.cubic feet f.cubic feet
9. ❑ Riverfront Area a.total sq.feet b.total sq.feet
Sq ft within 100 ft c.square feet d.square feet e.square feet f.square feet
Sq ft between 100- _
200 ft g.square feet h.square feet i.square feet i.square feet
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands 242-1800
LI) I MassDEP Fife#
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction
Forth Andover
city/Town
B. Findings (cant.)
Coastal Resource Area Impacts: Check all that apply below. (For Approvals Only)
Proposed Permitted Proposed Permitted
Alteration Alteration Replacement Replacement
lo. ❑ Designated Port Indicate size under Land Under the Ocean, below
Areas
11. ❑ Land Under the
Ocean a.square feet b.square feet
dredged d.cly dredged
12. ❑ Barrier Beaches Indicate size under Coastal Beaches and/or Coastal Dunes
below
13. ❑ Coastal Beaches cu yd cu yd
a.square feet b.square feet c,nourishment d.nourishment
14. ❑ Coastal Dunes ___ _, cu yd cu yd
a.square feet b.square feet c. nourishment d.nourishment
15. ❑ Coastal Banks a.linear feet b.linear feet
16. ❑ Rocky Intertidal
Shores a.square feet b.square feet
17. ❑ Salt Marshes a.square feel b.square feet c.square feet d.square feet
18. ❑ Land Under Salt _
Ponds a.square feet b.square feet
c.cly dredged d cly dredged
19. ❑ Land Containing
Shellfish a.square feet b,square feet c.square feet d.square feet
20. ❑ Fish Runs Indicate size under Coastal Banks, Inland Bank, Land Under
the Ocean, and/or inland Land Under Waterbodies and
Waterways, above
a,c/y dredged b.cly dredged
21. ❑ Land Subject to _
Coastal Storm a.square feet b.square feet
Flowage
2Z ❑ Riverfront Area a.total sq.feet b.total sq.feet
Sq ft within 100 ft c.square feet d.square feet e.square feet f.square feet
Sq ft between 100-
200 ft g,square feet h.square feet i.square feet j.square feet
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands 242-1800
MassDEP File#
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction#ILI �—
North Andover
City/Town
B. Findings (cons.)
p o23. If t he for 23. ❑ Restoration/Enhancementjec *:
the purpose of
restoring or
enhancing a a.square feet of BVW b.square feet of salt marsh
wetland
resource area 24. ❑ stream Crossing(s):
in addition to
the square
footage that a. number of new stream crossings b. number of replacement stream crossings
has been C. General Conditions Under Massachusetts Wetlands Protection Act
entered in
Section B.5.c
(Bvw)or The following conditions are only applicable to Approved projects.
B.17.c(Salt
Marsh)above, 1. Failure to comply with all conditions stated herein, and with all related statutes and other
please enter regulatory measures, shall be deemed cause to revoke or modif this Order.
the additional g Y Y
amount here. 2. The Order does not grant any property rights or any exclusive privileges; it does not
authorize any injury to private property or invasion of private rights.
3. This Order does not relieve the permittee or any other person of the necessity of complying
with all other applicable federal, state, or local statutes, ordinances, bylaws, or regulations.
4. The work authorized hereunder shall be completed within three years from the date of this
Order unless either of the following apply:
a. The work is a maintenance dredging project as provided for in the Act; or
b. The time for completion has been extended to a specified date more than three years,
but less than five years, from the date of issuance. If this Order is intended to be valid
for more than three years, the extension date and the special circumstances warranting
the extended time period are set forth as a special condition in this Order.
c. If the work is for a Test Project, this Order of Conditions shall be valid for no more than
one year.
5. This Order may be extended by the issuing authority for one or more periods of up to three
years each upon application to the issuing authority at least 30 days prior to the expiration
date of the Order. An Order of Conditions for a Test Project may be extended for one
additional year only upon written application by the applicant, subject to the provisions of 310
CMR 10.05(11)(f).
6. If this Order constitutes an Amended Order of Conditions, this Amended Order of
Conditions does not extend the issuance date of the original Final Order of Conditions and
the Order will expire on unless extended in writing by the Department.
7. Any fill used in connection with this project shall be clean fill. Any fill shall contain no trash,
refuse, rubbish, or debris, including but not limited to lumber, bricks, plaster, wire, lath,
paper, cardboard, pipe, tires, ashes, refrigerators, motor vehicles, or parts of any of the
foregoing.
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands 242-1800LJ) _
MassDEP File# �.
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction#
North Andover
Cityfi'owrt
C. Genera[ Conditions Under Massachusetts Wetlands Protection Act
8. This Order is not final until all administrative appeal periods from this Order have elapsed,
or if such an appeal has been taken, until all proceedings before the Department have been
completed.
9. No work shall be undertaken until the Order has become final and then has been recorded
in the Registry of Deeds or the Land Court for the district in which the land is located, within
the chain of title of the affected property. In the case of recorded land, the Final Order shall
also be noted in the Registry's Grantor Index under the name of the owner of the land upon
which the proposed work is to be done. In the case of the registered land, the Final Order
shall also be noted on the Land Court Certificate of Title of the owner of the land upon
which the proposed work is done. The recording information shall be submitted to the
Conservation Commission on the form at the end of this Order, which form must be
stamped by the Registry of Deeds, prior to the commencement of work.
10. A sign shall be displayed at the site not less then two square feet or more than three
square feet in size bearing the words,
"Massachusetts Department of Environmental Protection" [or, "MassDEP"]
"File Number '>
11. Where the Department of Environmental Protection is requested to issue a Superseding
Order, the Conservation Commission shall be a party to all agency proceedings and
hearings before MassDEP.
12. Upon completion of the work described herein, the applicant shall submit a Request for
Certificate of Compliance (WPA Form 8A)to the Conservation Commission,
13. The work shall conform to the plans and special conditions referenced in this order.
14. Any change to the plans identified in Condition #13 above shall require the applicant to
inquire of the Conservation Commission in writing whether the change is significant enough
to require the filing of a new Notice of Intent.
15. The Agent or members of the Conservation Commission and the Department of
Environmental Protection shall have the right to enter and inspect the area subject to this
Order at reasonable hours to evaluate compliance with the conditions stated in this Order,
and may require the submittal of any data deemed necessary by the Conservation
Commission or Department for that evaluation.
16. This Order of Conditions shall apply to any successor in interest or successor in control of
the property subject to this Order and to any contractor or other person performing work
conditioned by this Order.
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands 242-1800
MassDEP File#
►iNPA Form 5 - Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction#
North Andover
City/Town
C. General Conditions Under Massachusetts Wetlands Protection Act (cont.)
17. Prior to the start of work, and if the project involves work adjacent to a Bordering Vegetated
Wetland, the boundary of the wetland in the vicinity of the proposed work area shall be
marked by wooden stakes or flagging. Once in place, the wetland boundary markers shall
be maintained until a Certificate of Compliance has been issued by the Conservation
Commission.
18. All sedimentation barriers shall be maintained in good repair until all disturbed areas have
been fully stabilized with vegetation or other means. At no time shall sediments be
deposited in a wetland or water body. During construction, the applicant or his/her designee
shall inspect the erosion controls on a daily basis and shall remove accumulated sediments
as needed. The applicant shall immediately control any erosion problems that occur at the
site and shall also immediately notify the Conservation Commission, which reserves the
right to require additional erosion and/or damage prevention controls it may deem
necessary. Sedimentation barriers shall serve as the limit of work unless another limit of
work line has been approved by this Order.
19. The work associated with this Order(the"Project")
(1) ❑ is subject to the Massachusetts Stormwater Standards
(2) ❑ is NOT subject to the Massachusetts Stormwater Standards
If the work is subject to the Stormwater Standards,then the project is subject to the
following conditions:
a) All work, including site preparation, land disturbance, construction and redevelopment,
shall be implemented in accordance with the construction period pollution prevention and
erosion and sedimentation control plan and, if applicable, the Stormwater Pollution
Prevention Plan required by the National Pollution Discharge Elimination System
Construction General Permit as required by Stormwater Condition 8. Construction period
erosion, sedimentation and pollution control measures and best management practices
(BMPs) shall remain in place until the site is fully stabilized.
b) No stormwater runoff may be discharged to the post-construction stormwater BMPs
unless and until a Registered Professional Engineer provides a Certification that:
i. all construction period BMPs have been removed or will be removed by a date certain
specified in the Certification. For any construction period BMPs intended to be converted
to post construction operation for stormwater attenuation, recharge, and/or treatment, the
conversion is allowed by the MassDEP Stormwater Handbook BMP specifications and that
the BMP has been properly cleaned or prepared for post construction operation, including
removal of all construction period sediment trapped in inlet and outlet control structures;
ii. as-built final construction BMP plans are included, signed and stamped by a Registered
Professional Engineer, certifying the site is fully stabilized;
iii. any illicit discharges to the stormwater management system have been removed, as per
the requirements of Stormwater Standard 10;
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands 242-1800
WPA Form 5 -- Order of Conditions MassDEP File#
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction#
North Andover
cityrrown
C. General Conditions Under Massachusetts Wetlands Protection Act (cunt.)
iv. all post-construction stormwater BMPs are installed in accordance with the plans
(including all planting plans) approved by the issuing authority, and have been inspected to
ensure that they are not damaged and that they are in proper working condition;
v. any vegetation associated with post-construction BMPs is suitably established to
withstand erosion.
c) The landowner is responsible for BMP maintenance until the issuing authority is notified
that another party has legally assumed responsibility for BMP maintenance. Prior to
requesting a Certificate of Compliance, or Partial Certificate of Compliance, the responsible
party (defined in General Condition 18(e)) shall execute and submit to the issuing authority
an Operation and Maintenance Compliance Statement("O&M Statement)for the
Stormwater BMPs identifying the party responsible for implementing the stormwater BMP
Operation and Maintenance Plan ("O&M Plan") and certifying the following:
i.) the O&M Plan is complete and will be implemented upon receipt of the Certificate of
Compliance, and
ii.) the future responsible parties shall be notified in writing of their ongoing legal
responsibility to operate and maintain the stormwater management BMPs and
implement the Stormwater Pollution Prevention Plan.
d) Post-construction pollution prevention and source control shall be implemented in
accordance with the long-term pollution prevention plan section of the approved
Stormwater Report and, if applicable, the Stormwater Pollution Prevention Plan required by
the National Pollution Discharge Elimination System Multi-Sector General Permit.
e) Unless and until another party accepts responsibility, the landowner, or owner of any
drainage easement, assumes responsibility for maintaining each BMP. To overcome this
presumption, the landowner of the property must submit to the issuing authority a legally
binding agreement of record, acceptable to the issuing authority, evidencing that another
entity has accepted responsibility for maintaining the BMP, and that the proposed
responsible party shall be treated as a permittee for purposes of implementing the
requirements of Conditions 18(f) through 18(k)with respect to that BMP. Any failure of the
proposed responsible party to implement the requirements of Conditions 18(f) through
18(k) with respect to that BMP shall be a violation of the Order of Conditions or Certificate
of Compliance. In the case of stormwater BMPs that are serving more than one lot, the
legally binding agreement shall also identify the lots that will be serviced by the stormwater
BMPs. A plan and easement deed that grants the responsible party access to perform the
required operation and maintenance must be submitted along with the legally binding
agreement.
f) The responsible party shall operate and maintain all stormwater BMPs in accordance
with the design plans, the O&M Plan, and the requirements of the Massachusetts
Stormwater Handbook.
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands 242-1800
ILI MassDEP File#
WPA Form 5 -- Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 Nort Transaction#
North Andover
C ity/Town
C. General Conditions Under Massachusetts Wetlands Protection Act (cost.)
g) The responsible party shall:
1. Maintain an operation and maintenance log for the last three (3) consecutive
calendar years of inspections, repairs, maintenance and/or replacement of the
stormwater management system or any part thereof, and disposal (for disposal the
log shall indicate the type of material and the disposal location),
2. Make the maintenance log available to MassDEP and the Conservation
Commission ("Commission") upon request; and
3. Allow members and agents of the MassDEP and the Commission to enter and
inspect the site to evaluate and ensure that the responsible party is in compliance
with the requirements for each BMP established in the O&M Plan approved by the
issuing authority.
h) All sediment or other contaminants removed from stormwater BMPs shall be disposed
of in accordance with all applicable federal, state, and local laws and regulations.
i) Illicit discharges to the stormwater management system as defined in 310 CMR 10.04
are prohibited.
j) The stormwater management system approved in the Order of Conditions shall not be
changed without the prior written approval of the issuing authority.
k) Areas designated as qualifying pervious areas for the purpose of the Low Impact Site
Design Credit(as defined in the MassDEP Stormwater Handbook, Volume 3, Chapter 1,
Low Impact Development Site Design Credits) shall not be altered without the prior written
approval of the issuing authority.
1) Access for maintenance, repair, and/or replacement of BMPs shall not be withheld.
Any fencing constructed around stormwater BMPs shall include access gates and shall be
at least six inches above grade to allow for wildlife passage.
Special Conditions (if you need more space for additional conditions, please attach a text
document):
North Andover Conservation Commission Findings & Denial Decision (see attached)
20. For Test Projects subject to 310 CMR 10.05(11), the applicant shall also implement the
monitoring plan and the restoration plan submitted with the Notice of Intent. If the
conservation commission or Department determines that the Test Project threatens the
public health, safety or the environment, the applicant shall implement the removal plan
submitted with the Notice of Intent or modify the project as directed by the conservation
commission or the Department.
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands 242-1800
MassDEP File#
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction#
ILI North Andover
City/Town
D. Findings Under Municipal Wetlands Bylaw or Ordinance
1. Is a municipal wetlands bylaw or ordinance applicable? M Yes ❑ No
2. The North Andover hereby finds (check one that applies):
Conservation Commission
a. ® that the proposed work cannot be conditioned to meet the standards set forth in a
municipal ordinance or bylaw, specifically:
North Andover Wetlands Protection Bylaw& Reglations Chapt. 190
1.Municipal ordinance or Bylaw et.seq.
Therefore, work on this project may not go forward unless and until a revised Notice of
Intent is submitted which provides measures which are adequate to meet these
standards, and a final Order of Conditions is issued.
b. ❑ that the following additional conditions are necessary to comply with a municipal
ordinance or bylaw:
1. Municipal Ordinance or Bylaw 2.Citation
3. The Commission orders that all work shall be performed in accordance with the following
conditions and with the Notice of Intent referenced above. To the extent that the following
conditions modify or differ from the plans, specifications, or other proposals submitted with
the Notice of Intent, the conditions shall control.
The special conditions relating to municipal ordinance or bylaw are as follows (if you need
more space for additional conditions, attach a text document):
North Andover Conservation Commission Findings & Denial Decision (see attached)
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands Zq 2 - lap-
WPA Form 5 — Order of Conditions MassDEP He#
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 e—DEP-Transaction#
North Andover
GitylTown
E. Signatures
This Order is valid for three years, unless otherwise specified as a special
condition pursuant to General Conditions#4,from the date of issuance, 1.Date of Jssuance
Please indicate the number of members who will sign this form. q
This Order must be signed by a majority of the Conservation Commission, 2.Number of Signers
The Order must be mailed by certified mail (return receipt requested)or hand delivered to the applicant.A
copy also must be mailed or hand delivered at the same time to the appropriate Department of
Environmental Protection Regional Office, if not filing electronically, and the Property owner, if different
from applicant.
C71TI A.............7............
Si a Printed Name
1
Signature Printed Name
Signature' Printed Name
Sigfi-atTr—e k"I i Printed Name RAO 7—M
Signature Printed Name
Signature Printed Name
Signature Printed Name
-§716-n-a-ture Printed Name
T—/
El by hand delivery on NZ by certified mail, return receipt
requested, on 15 0 1
Date
wpaform5.doc-rev 511 812 02 0 Page 11 of 13
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Massachusetts Department of Environmental Protection Provided by MassDER
Bureau of Resource Protection - Wetlands 242-1800
MassDEP File#
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction#
ILI North Andover
Cityrrown
F. Appeals
The applicant, the owner, any person aggrieved by this Order, any owner of land abutting the
land subject to this Order, or any ten residents of the city or town in which such land is located,
are hereby notified of their right to request the appropriate MassDEP Regional Office to issue a
Superseding Order of Conditions. The request must be made by certified mail or hand delivery
to the Department, with the appropriate filing fee and a completed Request for Departmental
Action Fee Transmittal Form, as provided in 310 CMR 10.03(7)within ten business days from
the date of issuance of this Order. A copy of the request shall at the same time be sent by
certified mail or hand delivery to the Conservation Commission and to the applicant, if he/she is
not the appellant.
Any appellants seeking to appeal the Department's Superseding Order associated with this
appeal will be required to demonstrate prior participation in the review of this project. Previous
participation in the permit proceeding means the submission of written information to the
Conservation Commission prior to the close of the public hearing, requesting a Superseding
Order, or providing written information to the Department prior to issuance of a Superseding
Order.
The request shall state clearly and concisely the objections to the Order which is being
appealed and how the Order does not contribute to the protection of the interests identified in
the Massachusetts Wetlands Protection Act(M.G.L. c. 131, §40), and is inconsistent with the
wetlands regulations (310 CMR 10.00). To the extent that the Order is based on a municipal
ordinance or bylaw, and not on the Massachusetts Wetlands Protection Act or regulations, the
Department has no appellate jurisdiction.
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Massachusetts Department of Environmental Protection Provided by MassDEP:
Bureau of Resource Protection - Wetlands 242-1800
MassDEP File#
WPA Form 5 — Order of Conditions
Massachusetts Wetlands Protection Act M.G.L. c. 131, §40 eDEP Transaction#
ILI North Andover
Cityrrown
G. Recording Information
Prior to commencement of work, this Order of Conditions must be recorded in the Registry of
Deeds or the Land Court for the district in which the land is located, within the chain of title of
the affected property. In the case of recorded land, the Final Order shall also be noted in the
Registry's Grantor Index under the name of the owner of the land subject to the Order. In the
case of registered land, this Order shall also be noted on the Land Court Certificate of Title of
the owner of the land subject to the Order of Conditions. The recording information on this page
shall be submitted to the Conservation Commission listed below.
Conservation commission
Detach on dotted line, have stamped by the Registry of Deeds and submit to the Conservation
Commission.
---------------------------------------------------------------------------------------------------------------
To:
_-........ . ...........
Conservation Commission
Please be advised that the Order of Conditions for the Project at:
Project location MassDEP File Number
Has been recorded at the Registry of Deeds of:
County Book Page
for: ..�.-..�.............
Property Owner
and has been noted in the chain of title of the affected property in:
Book Page
In accordance with the Order of Conditions issued on:
Date
If recorded land, the instrument number identifying this transaction is:
Instrument Number
If registered land, the document number identifying this transaction is:
Document Number mm
._...W.........
Signature of Applicant
wVaform5.eoc•rev 511MO20 Page 13 of 13
DEP FILE #242-1800 DENIAL DECISION 158 Forest Sheet
FINDINGS OF FACT
I. Overview:
Nicholas Triano (the "Applicant") filed a Notice of Intent (NOI) with the North
Andover Conservation Commission (NACC) on November 23, 2020 requesting
an Order of Conditions approving the construction of a 38'x12' in-ground pool,
surrounding patio and fence, a 5'x12' pool equipment shed, and rear deck
removal associated with an existing single family dwelling situated within the
100-foot Buffer Zone to a Bordering Vegetated Wetland (BVW) that contains an
uncertified Ephemeral Pool and the associated 50-Foot No Disturb Zone and 75-
foot No-Build Zone. The BVW is subject to protection under the Massachusetts
Wetland Protection Act (MGL c.131 s.40) (the "Act"). The BVW, the Ephemeral
Pool and the 50-Foot No Disturb Zone (50' NDZ) and 75-Foot No Build Zone (75'
NBZ) is protected under the North Andover Wetland Protection Bylaw (c.190 of
the Code of North Andover) (the "Bylaw").
A legal notice was published accordingly in the Engle Tribune and a public
hearing was scheduled for December 2, 2020. On December 2, 2020, the NACC
opened the public hearing and held discussion, and further held discussion
during its January 27, 2021, February 10, 2021, and May 26, 2021 meetings. The
Commission, having received sufficient information and hearing no public
comments or questions, voted 5-0 (five in favor, none opposed) to close the
hearing and voted 5-0 (five in favor, none opposed) to deny the request for
waiver and render decision within 21 days. At its June 9, 2021 the Commission
voted 4-0-1 (four in favor, none opposed and one abstention) to issue the
following findings and decision.
Prior to the first hearing, Conservation Administrator conducted a site inspection
with the applicant and his wetland consultant to view site conditions. At that
time, the Administrator noted that the wetland to the south appeared to display
Ephemeral Pool characteristics. In addition, a wetland violation in the form of a
large area of yard waste and landscape debris dumping was observed
immediately adjacent to the wetland at the northerly edge of the property. The
applicant subsequently submitted a waiver request and mitigation proposal
requesting a waiver from the 75' NBZ to allow construction of the proposed
project elements and from the 50' NDZ to aIIow for planting mitigation.
The applicant requested a waiver from the 75-Foot No-Build Zone for the
proposed project. As mitigation for the waiver, the applicant proposed to restore
approximately 1,540 s.f. of the no disturbance zone. Another area of mitigation
planting consisted of 879 s.f., within the footprint of the yard waste dumping
area, which the NACC considers a violation that would have and will be
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DEP FILE 4 242-1800 DENIAL DECISION 158 Forest Street
necessary to address regardless. The proposed new construction includes an
area of approximately 2, 070 s.f. The proposed construction area is situated 56.6
feet from the wetland boundary at its closest point.
The Con-anission asked the applicant to investigate the potential vernal pool for
evidence to confirm its function/nature. The applicant stated that he was not
able to obtain permission from the abutting property owner at 10 Jerad Place
where the pool was located, to enter the pool for investitive purposes. It was
suggested that the Conservation Administrator accompany the wetland
consultant and applicant on site to investigate the pool to the greatest extent
possible.
On April 27, 2021, the Conservation Administrator participated in a site
inspection at the project site with the wetland consultant and
homeowner/applicant. This site visit was intended to gather additional
information regarding the presence or absence of vernal/ephemeral pool
indicators within the BVW that traverses the rear of the property and behind the
neighboring property at 10 Jerad Place.
The Administrator was actually able to wade into the outer perimeter of the pool
while remaining on the applicant's property. In accordance with the North
Andover Ephemeral Pool Criteria, Appendix C, sufficient evidence was found to
satisfy the criteria Section I. C. d. o. & q., to confirm presence of ephemeral pool
habitat.
II. North Andover Wetland Bylaw & Regulations:
(Chapter. 190 -Code of North Andover)
The Bylaw and Regulations are intended to utilize the "Home Rule" authority of
this municipality to protect additional resource areas, for additional values, with
additional standards and procedures stricter than those of the Act and
Regulations (310 CMR 10.00). The additional areas subject to protection under
the Bylaw include the buffer zone, smaller ponds, vernal pools, and certain
freshwater wetlands that may not meet the definition of Bordering Vegetated
Wetlands under the Act.
Chapter 190 Section 2. A. sets forth the protected wetland resources of the Town,
and the project site contains the following (2) any ephetiteral pool, aazd (3) Any
vegetated zoetland bordering on a creek, river, stream, pond or lake.
The following standards from the NACC Regulations apply to the proposed
project:
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DEP FILE #242-1800 DENIAL DECISION 158 Forest Street
a. Section 2(4.) Definitions
The 50' Ephemeral Pool No-Disturb Zone is that portion of the Buffer Zone which
extends fifty feet (50') fronh the edge of an Ephemeral Pool which is situated in an
upland location or, in situation where a Wetland resource area encompasses the pool,
that area that extends 50'from the edge of Ephemeral Pool habitat (see definition of
Ephemeral Pool Habitat and Section 3.1 of Regulations). Disturbance of any kind is
prohibited within. this Zone including by not limited to grading, Iandscaping,
vegetation removal, pruning, filling, excavating, stornunater discharge, road7Way
construction. and/or driveway construction,
75' Ephemeral Pool No Build Zone is that portion of the Buffer Zone which extends
75 feet (75') front the edge of an Ephemeral Pool which is situated in an upland
location or, ill situations where a wetland resource area encompasses the Pool, that
area which extends 75'from the edge of Ephemeral Pool Habitat. Construction of ally
kind is prohibited within this Zone including but not linnited to foundations
associated with single family homes, multi family dwellings, connnercial mad/or
industrial buildings, porches, decks (i.e., footing, piling, sonotube), patios, house
additions, building additions, pools and pool equipment/fences, septic systems, and
sheds. Driveways, roadways, retaining walls and landscape boulder walls shay be
allowed in the 75 foot Ephemeral Pool No-Build Zone when no other feasible location
or alternative means of access exists. Any permitted 71701k shall not obstruct the
migratory pathways of Ephemeral Pool breeders such as Ambystomid salamanders
and wood frogs. Stormxvater structures and/or discharge may be allowed in the 75-
foot Ephemeral Pool No-Build Zone when no other feasible Iocation exists, or when it
is necessary to maintain the hydrology of the resource. Ali alternatives analysis
showing the net benefit of locating the structure in the Ephemeral Pool No-Built
Zone is required.
b. Section 5 Waiver Provisions and Alternatives Analysis Requirements 5,1 No-
Distr.urbance Zones &5.2 No-Build Zoness Waivers
5.1 No-Disturbance Zones
The Commission may grant a ?Waiver from these regulations for alteration
of a buffer zone resource area in situations where there are no feasible
alternatives that provide fewer impacts to the resource area values. The
applicant is responsible for conducting this alternatives analysis to sho7W
that there are no feasible alternatives. The Commission tnay grant a
waiver of the 25-Foot No-Disturbance Zone and/or 50 foot Ephemeral
Pool No-Disturbance Zone performance standards and impose such
additional or substituted mitigative requirements as it deems necessary,
upon a clear and convincing showing by the applicant that:
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DEP FILE # 242-1800 DENIAL DECISION 158 Forrest Sheet
a) There are no practicable conditions or alternatives that would allow
the project to proceed in compliance with the regulations; and
b) The project, or its natural and consequential effects, will not have any
adverse effects upon any of the interests protected by the Bylaw. It
shall be the responsibility of the applicant to provide the Cornrnission
with any information that the Commission rrray request to enable the
Conission to ascertain such adverse effects, The failure of the
applicant to furnish any information that has been so requested shall
result in the denial of a request for a waiver pursuant to this
subsection, and
c) The project will improve the natural capacity of a resource area to
protect the interests identifier) in. the Bylaw, provided any adverse
effects on any such interests are minimized by carefully considered
conditions. However, no such project may be permitted which would
have an adverse impact on rare wildlife species.
In the case where a waiver is granted in the No-Disturbance Zone the
Commission shall require mitigation measures to be innplemented to offset
presumed impacts to the wetland resource areas (see Section 6.0).
5.2 No-Build Zones
The Commission may grant a waiver from these regulations for all
alteration of a buffer zone resource area in situations where there are no
feasible alternatives that provide for Iess impact to the resource area
values. The applicant is responsible for conducting all alternatives
analysis to show that there are no feasible alternatives. The Commission
may grant a waiver of the 50 foot No-Build Zone and 75 foot Ephemeral
Pool No-Build Zone per forniance standards and impose such additional or
substituted mitigative requirements as it deems necessary, upon a clear
and convincing showing by the applicant that.
♦ There are no practicable conditions or alternatives that would
allow the project to proceed in compliance with the regulations;
and
♦ The project, or its natural and consequential effects, will not have
any adverse effects upon any of the interests protected by the
Bylaw. It shall be the responsibility of the applicant to provide [lie
Commission With any information that the Commission pray
request to enable the Commission to ascertain such adverse effects.
The failure of the applicant to furnish any information that has
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DEP FILE # 242-1800 DENIAL DECISION 158 Forest Street
been so requested shall result in the denial of a request for a znaiver
ptcrsuarit to this subsection; and
♦ The project mill improve the natural capacity of a resource area to
protect the interests identified in the Bylazn, provided any adverse
effects orz any such interests are rninirnized by carefully considered
conditions. Hoznever, no such project may be permitted zMieh
mould have an adverse ittipact on rare zoildlife species.
M the case inhere a waiver is granted in the No-Build Zone, the
Corrnnissiorr shall require mitigation measures to be irarplerriented to offset
potential impacts to the zoetland resource areas (see Section 6.0).
III. Decision-DENIAL
The Conu-nission has determined that the proposed project does not conform to
the following local Regulations:
Section 3.1 of the North Andover Wetland Regulations references and describes
the 75-foot No-Build Zone. Construction of any kind is prohibited within this
Zone including but not limited to foundations associated with single family
homes, multi-family dwellings, commercial and/or industrial buildings, porches,
decks (i.e., footing, piling, sonotube), patios, house additions, building additions,
pools and pool equipment/fences, septic systems, and sheds. Driveways,
roadways, retaining walls and landscape boulder walls may be allowed in the 75-
foot Ephemeral Pool No-Build Zone when no other feasible location or
alternative means of access exists.
The imposition of this additional zone is established since, in the considerable
body of experience of the Commission, alteration of land irrunediately adjacent to
a wetland and sensitive ephemeral pools invariably results in the alteration of
the wetland itself. Such wetland alterations have been observed during
construction such as siltation, over-grading or depositing construction debris.
Such alterations have been observed after construction from improper land use
such as unregulated filling, cutting of vegetation, extension of Iawns, the
deposition of yard waste, improper pool water management. Such alterations
have been observed resulting in increased runoff, siltation and temperature or
nutrient loading resulting from the change in land use immediately adjacent to
the wetland. These subsequent alterations cannot be regulated without the
imposition of the restricted zones detailed above. Since the Commission cannot
allow unregulated alteration of wetlands, these restricted zones will likely be
imposed on all projects. Such findings have compelled the Commission to
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DEP FILE H 242-1800 DENIAL DECISION 158 Forest Street
engage in research into the literature and regulations concerning the function
and necessity of such zones.
After careful review of the information presented by the applicant at public
hearings and staff site visits, the NACC DENIES the applicant's request to
construction of a 38'x12' in-ground pool, surrounding patio and fence, a 5'x12'
pool equipment shed, and rear deck removal associated with an existing single
family dwelling situated within the 100-foot Buffer Zone to a BVW that contains
an uncertified Ephemeral Pool and the associated 50-Foot No-Disturb Zone and
75-foot No-Build Zone shown on the plan of record entitled "Plot Plena of Laud 158
Forest Street Dieted 1-26-21, scale 1"=30, prepared by Hancock Associates signed all
stamped by Gregory Gotild,
NACC Waiver Standard. "There are no practicable conditions or alternatives
that would allow the project to proceed in compliance with the regulations".
The alternatives analysis presented by the applicant included only one
alternative to constructing the proposed project, that which was presented in the
original filing. The Commission did not find the alternatives analysis to be clear
and convincing, but was, in fact, void of value engineering or modification of the
project to attempt to comply with the Regulations. The Commission finds that
the overarching tenets of the Wetland Protection Act, Bylaw and Regulations is
to first avoid jurisdiction, if jurisdiction cannot be avoided the project is then
value engineered/modified to reduce impacts to the greatest extent practicable
that would accomplish the project with the least amount of impact. Finally, once
impact is reduced/project is modified to the greatest extent practicable,
mitigation is then designed to improve the natural capacity of the wetland
resource areas. At no time did the applicant attempt to reconfigure or modify the
project to reduce impact within the 75' NBZ.
NACC Waiver Standard. "The project, or its natural and consequential effects,
will not have any adverse effects upon any of the interests protected by the
Bylaw. It shall be the responsibility of the applicant to provide the Commission
with any information that the Commission znay request to enable the
Conunission to ascertain such adverse effects. The failure of the applicant to
furnish any information that has been so requested shall result in tine denial of a
request for a waiver ptirsuant to this subsection."
The applicant did not provide clear and convincing showing, testimony or
documentation that overcame the presumption that the proposed project located
within the 75-foot No-Build Zone would have an adverse effect upon the
interests protected by the Bylaw.
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DEP FILE # 242-1800 DENIAL DECISION 158 Forest Street
NACC Mitigative .Requirentents: "The project will improve the natural capacity
of a resource area to protect the interests identified in the Bylaw, provided any
adverse effects oil any such interests are minimized by carefully considered
conditions. .However, no such project nzay be perra:itted which would have all
adverse impact on rare wildlife species."
The applicant did not satisfy the Commission's requirement for improvement of
the natural capacity of a resource area to protect the interests identified in the
Bylaw.
No work shall be performed on this project. The applicant has failed to
demonstrate compliance with the North Andover Wetland Protection Bylaw and
Regulations, and did not provide a clear and convincing showing that feasible
alternatives did not exist which avoided, minimized and mitigated impacts to the
protected wetland resources.
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